By Mark Dovich
The recent announcement that Armenia’s constitutional referendum, originally slated for early April, will be indefinitely postponed due to the ongoing coronavirus pandemic represents a major setback to Prime Minister Nikol Pashinyan’s long-standing plans for judicial reform in the country. To that end, speaking at a press conference earlier this month, Pashinyan conceded that implementing a program of “rapid judicial reform” in Armenia does not seem feasible at present, as the country grapples with a dramatic uptick in coronavirus cases.
Nonetheless, Pashinyan’s administration has consistently underlined its commitment to overhaul Armenia’s judicial system, which has long suffered from endemic corruption, political interference, a lack of transparency, and low levels of public trust. In May 2019, the government presented its most detailed reform proposal to date, outlining a five-step plan to resolve the judiciary’s long-standing issues in what it termed a “surgical intervention”.
These steps are to involve the introduction of public vetting for all judges; the removal of all judges whose rulings had been overturned by the European Court of Human Rights; the removal of all judges determined unable to work in an impartial and objective manner; the introduction of transitional justice mechanisms; and the development of relevant legislation in the country’s National Assembly to improve the judiciary’s overall functioning.
Presenting the plan, Pashinyan underlined his desire to implement it “within the framework of cooperation” with both Armenian civil society organizations and international actors, particularly the Council of Europe, the European Union, the Organization for Security and Cooperation in Europe, and the United Nations.
While Armenians — who overwhelmingly consider judicial reform a priority in the country — wait for the government to implement the reforms,here is a look at other countries’ experiences in overhauling substandard judiciaries in post-authoritarian contexts. What lessons can be gleaned from these examples, and how can they inform Armenia’s reform plans moving forward?
As the experiences of Ukraine and Moldova demonstrate, the task of building a truly independent, transparent, and accountable judiciary in a post-Soviet context is complex. From Armenia, one need look only so far as neighboring Georgia, whose judicial system, though far from perfect, has made tremendous strides forward in recent years.
Georgia’s first wave of judicial reform was carried out in the years immediately following the 2003 Rose Revolution, which swept Mikheil Saakashvili into the Presidential Palace. Facing many of the same problems as Armenia, Georgia enacted a judicial reform that involved the mass dismissal of judges, significant increases in judges’ salaries (as a means of lowering incentives to take bribes), and meaningful improvements in infrastructure, including court building renovations and the introduction of up-to-date equipment. Saakashvili’s administration also opened the High School of Justice in Tbilisi as a training institution for lawyers, judges, and other legal professionals.
Meanwhile, the government passed constitutional amendments that limited the executive branch’s power over the appointment and dismissal of judges, fixed term limits for judges, and introduced formal requirements for their training — all in line with international standards.
Finally, the government made efforts to provide space for Georgia’s vibrant civil society to participate in the discourse and in the process. Most prominently, the Georgian Young Lawyers’ Association emerged as a crucial watchdog and monitoring body in the post-revolutionary years. Today, the association remains one of the most prominent non-governmental organizations in any field in Georgia.
Nonetheless, significant problems remain in Georgia related to judicial independence from political pressure. Georgia’s judicial system has remained stubbornly open to political interference from the executive and legislative branches.
Most recently, the government detained several high-profile opposition figures, including former Tbilisi mayor Gigi Ugulava and former Defense Minister Irakli Okruashvili on charges widely considered to be connected with their political activities. Though President Salome Zurabishvili eventually pardoned the two men amid both domestic and international criticism, their brief detentions highlight politicized reality of Georgia’s judicial system.
Far away from Georgia is Chile, whose widely-hailed judicial reform program was enacted following nearly two decades of military dictatorship. During that period, military tribunals and courts held jurisdiction over civilian cases, resulting in widespread human rights abuses and entrenched corrupt practices. Most conspicuously, an estimated 38,000 people were tortured for suspected or perceived dissidence or leftwing sympathies, leaving a legacy of violence that remains to this day.
Following President Augusto Pinochet’s resignation in 1990, the country embarked on a comprehensive judicial overhaul. First, that same year, the government convened a National Commission for Truth and Reconciliation to compile a report on the most serious human rights violations that occurred during military rule.
Several years later, the government enacted a series of procedural reforms, legislative improvements, and constitutional amendments aimed at simultaneously increasing judicial independence, access, and efficiency. On the procedural side, Chile formed a public prosecutor’s office to shift investigative and prosecutorial responsibilities away from judges; made trials public; expanded legal protections for defendants, particularly in pretrial detention; and expanded the number of alternative dispute resolution mechanisms available to guilty parties.
Meanwhile, a new criminal procedural code was put into place, and constitutional amendments were passed that expanded the number of Supreme Court judges and introduced term limits for, both in an effort to dilute the influence of judges who had been appointed during military rule. Several Supreme Court judges were also directly impeached for professional misconduct. Importantly, all these steps were taken with the approval of civil society organizations and widespread public participation.
By the 2000s, Chile’s judicial system had been brought considerably more in line with international standards, functioned in a significantly more transparent and efficient manner, and enjoyed higher levels of public trust. Though the judiciary still suffers from cases involving the impunity of the military and other security bodies, the overall reform program has been a decisive success and one of the greatest judicial reform cases in Latin America.
The experiences of Georgia and Chile demonstrate that there is not one ‘right’ way to go about judicial reform. Indeed, many experts underscore that there is no ‘one-size-fits-all’ solution; rather, each country must tailor a particular approach that takes into account its own unique history and politics.
Georgia, for instance, conducted a wide-ranging program of lustration—the widespread removal of many civil servants—while Chile chose to focus on the procedural and legislative frameworks in which those civil servants operate. While both approaches resulted in generally successful reforms, they differed primarily because they accounted for what each country in particular needed at the time.
It follows that Armenia must go its own way in designing and implementing its judicial reform program. Though the possible approaches are numerous — from mass dismissals to legislative innovations, from vetting judges to establishing truth and reconciliation commissions — the key will lie in the involvement of the civil society and the broader public, whose trust in the judiciary as an institution must be restored. Though international organizations can certainly assist, the impetus must come from both the Armenian government and the people whom it represents.
Pashinyan’s government already enjoys widespread support from the Armenian people and access to a wealth of successful approaches it can draw on, both from within the post-Soviet space and beyond. What remains to be seen is if the administration will be able to overcome the current domestic situation, including the ongoing coronavirus crisis, to make Armenia another judicial reform success story.